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The facts involve the construction of section 7 of the organic act of Porto Rico and whether the government of that island can be sued without its consent.
The appellee was plaintiff in the first instance. The defendants were The People of Porto Rico (the government of the island) and several named individuals. Recovery was sought of property in possession of the defendants and for rents and profits. The individual defendants defaulted. The government defended, and from a judg ment ousting it from the property and for rents and profits appealed to the Supreme Court. The court, giving its reasons for affirmance, thus stated the only issue presented, and which was decided: "The appeal was taken by The People of Porto Rico, and the only ground alleged in support thereof was that inasmuch as The People of Porto Rico could not be sued without its consent, and such consent not appearing to have been given in this case, the district court had acted without jurisdiction, and the judgment rendered by it was rendered null and void." The court did not overlook the importance of the question, as is shown by its careful and perspicuous opinion. A member of the court fully stated his reasons for dissenting. On this appeal, taken by The People of Porto Rico, the case having been tried without a jury, the question for decision is narrower than would seem to be the case regarding alone the general terms in which the question is mentioned in the passage previously quoted from the opinion of the court below.
Supreme Court of the United States.
CORDOVA v. FOLGUERAS Y RIJOS.
DUMEY V. HERNANDEZ Y BELLO.
Appeal from the Supreme Court of Porto Rico.
Appeal from the District Court of the United States for Porto Rico. (227 U. S., 375.)
Nos. 141, 160. Argued January 23, 1913. Decided February 24, 1913.
During the lifetime of the ancestor no heir has a vested right to inherit from him; and heirs only have such rights of inheritance as are given to them by the laws in force at their ancestor's death.
It is not an interference with vested rights to prescribe the mode of procedure, or the time within which to enforce them, provided reasonable time be given therefor.
Under the laws of Porto Rico, while law 11 of Toro as to effect of acts of recognition of rights of natural children may be in force, the provisions of sections 133 and 137 of the code of 1902 must be complied with in order to enforce such rights; and this applies to persons whose alleged parents died prior to the enactment of the code.
Decisions of the courts of Spain rendered after 1898, construing Spanish law applicable to possessions ceded to the United States, although entitled to great consideration, do not preclude the local court from reaching an independent judgment.
16. Porto Rico, 593, affirmed.
5 Porto Rico Fed. Rep., 191, affirmed.
Opinion by Holmes, J. No dissenting opinion. 141. Judgment affirmed. 160. Decree affirmed.
The facts involve the construction of the law of Porto Rico in regard to actions for acknowledgment of natural children.
The first of these suits was brought by the appellant, in 1908, it would seem, to have herself declared a natural daughter and entitled to a share of the estate of Don Santiago Rijos Correa, who died on April 29, 1869. The appellees demurred to the complaint on the grounds adverted to in Burnet v. Desmornes (226 U. S., 145). By the civil code of 1889, article 137, actions for the acknowledgement of natural children can be instituted only during the life of the presumed parents, or if the parent dies during the minority of the child within the first four years of its majority. If the appellant was not of age at the death of Correa, she reached majority at the latest in 1893, and the action was barred in 1897. (Under the code of 1902, section 199, the action is allowed only for two years after coming of age.) The Supreme Court sustained the demurrer and dismissed the complaint.
The second suit, begun in June, 1909, had a similar object. The appellant alleged that she was born on August 4, 1875, and was a natural child of Damian Morell; that he left her mother and married in 1880; in 1889 removed to Mallorca, and died on December 29, 1899. Ón demurrer the bill was dismissed by the district court, following the authority of the foregoing decision of the Supreme Court. (We may assume that as the plaintiff retained her domicile in Porto Rico, and as a considerable part of the estate consisted of land in the same place, the possible bearing on the case of the removal of Morell to Spain need not be considered.)
Supreme Court of the United States.
PEOPLE OF PORTO RICO v. TITLE GUARANTY AND SURETY COMPANY.
No. 154. Argued January 30, 1913. Decided February 24, 1913.
In this case held that a bond given in pursuance of an ordinance, for faithful pursuance of a contract, was solely for the complete result at the end of the period specified, and that it did not permit a recovery of the whole penalty upon any intermediate breach.
Breaches of subordinate requirements, which are specified in a contract for a public utility and bond for performance and are simply means to an end, cannot be made the basis of recovering the whole penalty after final completion or after cancellation by the obligee of the franchise.
If within the time for completion of a public utility authorized by ordinance, the municipality itself makes performance impossible, it cannot, under any system of law in Porto Rico or elsewhere, recover upon the bond for failure to perform.
180 Fed. Rep. 641, affirmed.
Opinion by Holmes, J. No dissenting opinion.
The facts involve the liability of a surety company on a bond given for faithful performance of a contract.
This is a suit upon a joint and several bond executed by the defendant in error as surety for the Vandergrift Construction Company. In the Circuit Court a nonsuit was ordered and the order was affirmed by the Circuit Court of Appeals on the ground that the plaintiff by its own act had made performance of the condition. impossible. 103 C. C. A. 607; 180 Fed. Rep. 641. The facts are
By an ordinance of March 2, 1903, Porto Rico granted to the Vandegrift Company the right to build and operate an electric railway and also a power plant in specified places in the island. Within one year from acceptace of the grant the grantee was to have its road bed completely graded between the Island of San Juan and the urban portion of the municipality of Caguas, and the foundations and approaches of a certain bridge completed (sec. 15). Within two years it was to have the parts of the railway lying between the urban portion of San Juan and Caguas and certain other points finished and ready for service (sec. 16). Within three years it was to have the whole line completed and in opertion (sec. 17). It was stated to be expressly understood and agreed that upon the grantee's failure to have the line in full operation within the time limited, i. e. three years, the grantee's right to operate any part of it or to sell electric light and power should cease unless the failure should be declared by the Executive Council to be due to one of certain excuses, such as the act of God (sec. 16).
A power dam at Comerio Falls was to be completed in one year and the greater part of the electric apparatus contracted for; the whole power plant and transmission lines necessary for operating the railway to be completed within three years (sec. 18). The grantee was to pay the government 2 per cent of its gross receipts from the sale of light and power to private consumers (sec. 23), was not to charge above certain maxima fixed for passengers and freight (sec. 25), and was to carry certain persons, such as prisoners and police on duty, free of charge (secs. 27, 28). The rights, privileges and concessions granted by the ordinance were expressed to be subject to amendment, alteration, or repeal by the executive council (sec. 30). Then it was provided that the rights granted "shall be accepted by the grantee in writing and by executing a bond in favor of the people of Porto Rico, in the sume of one hundred thousand dollars satisfactory etc., and conditioned upon the full completion of the work herein authorized within three years after such acceptance and in accordance with the conditions herein contained, and in accordance with the plans and specifications therefor approved as herein provided; and conditioned also upon the payment by the grantee to the People of Porto Rico of any loss or damage
or costs accruing against the People of Porto Rico, by reason of the construction of the works herein authorized, at any time during the period of construction herein limited," etc. (sec. 34).
Upon presentation of a certificate of completion from the commissioner of the interior, "and upon the full compliance with the terms of this ordinance to the full satisfaction of the executive council, and upon the full payment by the grantee of any loss, damage, and costs accruing against the People of Porto Rico as in said bond provided, the said bond shall be cancelled." (Sec. 35.) Finally the ordinance is to "take effect immediately upon the acceptance by the grantee of the terms and conditions hereof as above provided." (Sec. 38.)
The bond in suit was executed, referring to and annexing the ordinance, and conditioned among other things that the principal, within three years from the date of the acceptance by it of the ordinance, should fully complete the work "in accordance with the conditions therein contained'; and again that it should duly perform ' within the said period of three (3) years, all other terms and conditions in said ordinance required to be performed by the principal within the said period."
The principal failed to do within the year the work required by section 15 to be completed in that time, as has been stated, and a little more than two months after the year elapsed, in July, 1904, the Executive Council passed an ordinance amending sections 15, 18, and 30 of the former one, the amendment being approved by the President on August 2. The time allowed in section 15 was extended to January 1, 1905, provided that the number of men employed on or before August 7 should be not less than 250 and that the number should be increased up to 500 or thereabouts, the intent expressed being that as many men should be engaged as was necessary to complete the work, and provided that the men should be paid weekly, and provided further that upon failure to comply with the terms and conditions of the amendment the franchise should be subject to immediate forfeiture. The requirement in section 18 as to the power dam at Comerio Falls, etc., also was extended to January 1, 1905. Finally to the provision in section 30 as to amendment, etc., of the concession there was added the express requirement of the approval of the Governor of Porto Rico and of the President of the United States, and the statement that it was subject to the power of Congress to annul or modify the same. This amendment seems to have been sought and accepted by the principal, but was not known to the defendant surety company, so far as appears.
In February, 1905, a further ordinance was passed, approved by the governor in March and by the President on May 12, which recited a failure by the company to comply with the terms of sections 15 and 18. either in their original form or as amended, and therefore repealed and revoked the grant and declared all "sureties or obligations * * given by the said grantee as a guaranty * * * forfeited to the People of Porto Rico to all and whatsoever extent the same shall be liable under the law." In September, 1906, this suit was begun.
The main question is the scope of the condition of the bond.
Supreme Court of the United States.
ZIMMERMAN v. HARDING.
HARDING V. ZIMMERMAN.
Appeals from the District Court of the United States for Porto Rico. (227 U. S., 489.)
Nos. 771, 894. Submitted January 10, 1913. Decided February 24, 1913.
A partnership formed to run a hotel for which a lease is obtained held in the absence of any stipulation as to duration to be for the term of the lease. Where partnerships are regulated by statute, as in Porto Rico, the rights of one attempting to dissolve depend upon the statute rather than on general law applicable elsewhere.
The right to dissolve under section 1607, Civil Code Porto Rico, is confined to partnerships the duration of which has not been fixed; under section 1609 a partnership for fixed duration can only be dissolved for sufficient cause shown to the court, and one attempting to dissolve before the fixed termination and to exclude the other from participation must account to the latter for his share of the profits until the court decrees a dissolution in a suit brought to dissolve. Partnership property continues to be such after as well as before dissolution. Where one party attempts to illegally dissolve a partnership without suit and
subsequently the other brings a suit for dissolution in accordance with the statute the former must account for all profits until the final decree of dissolution.
The doctrine of election is applicable as between inconsistent remedies; but does not apply to a partner wrongfully excluded from participation. He does not lose his right to an accounting because he first starts an action at law which he subsequently dismisses.
There may be a recovery at law for damages resulting from a breach of the partnership agreement, as well as an action for accounting in equity for the same breach, and a partner wrongfully excluded from management and profits need not wait for the end of the period, but may show in an action at law his probable profits.
One who wrongfully excludes the other partner from management of the partnership affairs is not entitled to a salary for managing them during such period of exclusion.
This court can only review an improper allowance of salary to a partner where an exception has been filed to such allowance.
Where the case has been tried in an irregular manner and items are allowed in the final decree which do not appear in the auditor's or master's report, this court can not attempt to correct errors assigned here, and will presume that the decree, so far as it stands upon questions of fact, is supported by evidence not objected to.
Opinion by Lurton, J. No dissenting opinion.
All of the assignments must be overruled and the decree affirmed.
The case in substance is this:
The appellee, Harding, undertook to obtain a lease from the owner of a hotel property situated in a suburb of San Juan, Porto Rico, and an option of purchase. The parties agreed upon the rental, term of the lease, and upon an option of purchase during the term of the lease, but the owners required Harding to associate himself with another person, as colessee, satisfactory to them. After some nego